Land rights
Encyclopedia
Land law is the form of law
that deals with the right
s to use
, alienate
, or exclude others from land. In many jurisdictions, these species of property
are referred to as real estate
or real property
, as distinct from personal property
. Land use
agreements, including renting
, are an important intersection of property and contract law. Encumbrance
on the land rights of one, such as an easement
, may constitute the land rights of another. Mineral rights
and water rights are closely linked, and often interrelated concepts.
Land rights are such a basic form of law that they develop even where there is no state to enforce them; for example, the claim club
s of the American West were institutions that arose organically to enforce the system of rules appurtenant to mining. Squatting
, the occupation of land without ownership, is a globally ubiquitous and important form of land use.
Sovereignty
, in common law
jurisdictions, is often referred to as absolute title, radical title, or allodial title
. Nearly all of these jurisdictions have a system of land registration
, to record fee simple
interests, and a land claim process to resolve disputes.
Indigenous land rights
are recognized by international law
, as well as the national legal systems of common law and civil law
countries. In common law jurisdictions, the land rights of indigenous peoples
are referred to as aboriginal title
. In customary law jurisdictions, customary land
is the predominant form of land ownership.
A land value tax
is a component of tax law
in nearly all jurisdictions. Land reform
refers to government policies that take and/or redistribute land, such as a land grant
.
Land rights refer to the inalienable ability of individuals to obtain, utilise, and possess land at their discretion, as long as their activities on the land do not impede on other individuals’ rights. This is not to be confused with access to land, which allows individuals the use of land in an economic sense (i.e. farming). Instead, land rights address the ownership of land which provides security and increases human capabilities
. When a person only has access to land, they are in constant threat of expulsion depending on the choices of the land owner, which limits financial stability.
Land rights are an integral part of Land Laws, as they socially enforce groups of individuals’ rights to own land in concurrence with the land laws of a nation. Land Law addresses the legal mandates set forth by a country in regards to land ownership, while land rights refer to the social acceptance of land ownership. Landesa
, formerly known as the Rural Development Institute (RDI)
takes the stance that although the law may advocate for equal access to land, land rights in certain countries and cultures may hinder a group’s right to actually own land. Laws are important, but they must be backed up by cultural tradition and social acceptance. Therefore, laws concerning land ownership and land rights of a country must be in agreement.
Globally, there has been an increased focus on land rights, as they are so pertinent to various aspects of development. According to Wickeri and Kalhan, land ownership can be a critical source of capital, financial security, food, water, shelter, and resources. The UN Global Land Tool organisation has found that rural landlessness is a strong predictor of poverty and hunger, and negatively impacts Empowerment
and the realisation of Human rights
. In order to home in on this critical problem of inadequate land rights, The Millennium Development Goal 7D
strives to improve the lives of 100 million slum dwellers. This includes increased land rights for impoverished people, which will ultimately lead to a higher quality of life.
Although land rights are fundamental in achieving higher standards of living, certain groups of individuals are consistently left out of land ownership provisions. The law may provide access to land, however, cultural barriers and poverty trap
s limit minority groups’ ability to own land. In order to reach equality, these groups must obtain adequate land rights that are both socially and legally recognised.
claims that providing sufficient land rights for women is beneficial because:
In many parts of the world, women have access to land in order to farm and cultivate the land; however, there are traditions and cultural norms which bar women from inheriting or purchasing land. This puts women in a place of dependence on their husbands, brothers, or fathers for their livelihood and shelter. Should there be an illness, domestic violence, or death in the family, women would be left landless and unable to either grow crops for food, or rent land for profit. Land ownership for women is a crucial form of security and income, increasing Empowerment
and decreasing Poverty
.
practices which dominate the nation. Up until recently, Indian women have been left out of laws regarding the distribution of public land, forced to rely on the small possibility of obtaining private land from family. Inheritance laws
which cater towards men are one of the key issues behind inequality in land rights. According to Bina Agarwal
, land ownership defines social status and political power in the household and in the village, shaping relationships and creating family dynamics. Therefore, inheritance of land automatically puts men above women both in the household, and in the community. Without the political pull in the village, and limited bargaining powers within the household, women lack the voice to advocate for their own rights.
Another issue with land rights in India is that they leave women completely dependent on the lives of their husbands. A study by Bina Agarwal found that in West Bengal, prosperous families turn destitute when the male head of the household dies, as women are not permitted to take over their husband’s land. Also, due to cultural tradition, the higher the status of the woman, the less likely she is to have any developed skills that would be useful in finding work. These women are forced to beg for food and shelter once their husbands die because they have not been allowed to gain work experience.
Bina Agarwal argues that land ownership significantly decreases the chance of domestic violence against Indian women. Owning property elevates women to a higher status within the household, allowing more equality and bargaining power. In addition, owning property separately from their husbands allowed women an opportunity of escape from abusive relationships
. Agarwal concluded that the prospect of a safe shelter outside of the main household decreases the longevity of domestic violence.
Land rights are critical for women in India due to the heavily patriarchal society in which they live. Cultural perspectives play a key role in the acceptance of equality within land ownership. Women owning land ultimately benefits the household and society as a whole.
The most recent advance towards equality in land rights in India was the Hindu Succession Act of 2005. This act aimed to remove the gender discrimination which was present in the Hindu Succession Act, 1956. In the new amendment, daughters and sons have equal rights to obtain land from their parents. This act was both a legally and socially important move for women’s rights to land ownership. Not only did it legally mandate equality in land succession, it also validated women’s roles as equals in society.
enforces equality between men and women, including the acquisition and ownership of land. However, research from Women’s Land Link Africa reveals that women remain excluded from land ownership due to customs and deeply ingrained cultural habits. Even when women save up enough money to purchase land, the land is signed in their husband’s name, while women sign as the witness. Inheritance practices
are a particular obstacle which reduces women empowerment
, as well. Land is passed down through male lineage which reinforces women’s exclusion from land ownership. Another detriment to equality, pointed out by Women’s Land Link Africa, is that women lack sufficient knowledge about the rights they have under the law to own land. Rural, illiterate women do not even have access to the new constitution which guarantees them land rights.
Although the 1995 Constitution provides for equality between men and women, there are still gaps in the law which affect women’s rights to land. The law protects the rights to land of wives in marriage; however, it does not address the needs of widows or divorcees. Consequentially, these women are left landless and without the protection land offers. Also, women have a difficult time taking cases to court due to corruption and expensive trials. The trials concerning land take so long to process that many women do not even attempt to seek legal assistance.
Women’s Land Link Africa provides suggestions to alleviate inequality in land ownership. Rural women can be educated about their rights through radio campaigns, community discussions, educational outreach programs, and public forums. The cultural nuances must be addressed in policies and community leaders can be educated about inclusion of minority groups. Also, the law itself can address the rights of widows and divorcees in addition to the rights of married women.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
that deals with the right
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
s to use
Usufruct
Usufruct is the legal right to use and derive profit or benefit from property that either belongs to another person or which is under common ownership, as long as the property is not damaged or destroyed...
, alienate
Alienation (property law)
Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although property is generally deemed to be alienable, it may be subject to restraints on alienation....
, or exclude others from land. In many jurisdictions, these species of property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
are referred to as real estate
Real estate
In general use, esp. North American, 'real estate' is taken to mean "Property consisting of land and the buildings on it, along with its natural resources such as crops, minerals, or water; immovable property of this nature; an interest vested in this; an item of real property; buildings or...
or real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
, as distinct from personal property
Personal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
. Land use
Land use
Land use is the human use of land. Land use involves the management and modification of natural environment or wilderness into built environment such as fields, pastures, and settlements. It has also been defined as "the arrangements, activities and inputs people undertake in a certain land cover...
agreements, including renting
Renting
Renting is an agreement where a payment is made for the temporary use of a good, service or property owned by another. A gross lease is when the tenant pays a flat rental amount and the landlord pays for all property charges regularly incurred by the ownership from landowners...
, are an important intersection of property and contract law. Encumbrance
Encumbrance
Encumbrance is legal technical terminology for anything that affects or limits the title of a property, such as mortgages, leases, easements, liens, or restrictions. Also, those considered as potentially making the title defeasible are encumbrances...
on the land rights of one, such as an easement
Easement
An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
, may constitute the land rights of another. Mineral rights
Mineral rights
- Mineral estate :Ownership of mineral rights is an estate in real property. Technically it is known as a mineral estate and often referred to as mineral rights...
and water rights are closely linked, and often interrelated concepts.
Land rights are such a basic form of law that they develop even where there is no state to enforce them; for example, the claim club
Claim club
Claim clubs, also called Actual Settlers' Associations or Squatters' Clubs, were a nineteenth century phenomenon in the American West. Usually operating within a confined local jurisdiction, these pseudo-governmental entities sought to regulate land sales in places where there was little or no...
s of the American West were institutions that arose organically to enforce the system of rules appurtenant to mining. Squatting
Squatting
Squatting consists of occupying an abandoned or unoccupied space or building, usually residential, that the squatter does not own, rent or otherwise have permission to use....
, the occupation of land without ownership, is a globally ubiquitous and important form of land use.
Sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
, in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions, is often referred to as absolute title, radical title, or allodial title
Allodial title
Allodial title constitutes ownership of real property that is independent of any superior landlord, but it should not be confused with anarchy as the owner of allodial land is not independent of his sovereign...
. Nearly all of these jurisdictions have a system of land registration
Land registration
Land registration generally describes systems by which matters concerning ownership, possession or other rights in land can be recorded to provide evidence of title, facilitate transactions and to prevent unlawful disposal...
, to record fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
interests, and a land claim process to resolve disputes.
Indigenous land rights
Indigenous land rights
Indigenous land rights are hangtime the rights of indigenous peoples to land, either individually or collectively. Land and resource-related rights are of fundamental importance to indigenous peoples for a range of reasons, including: the religious significance of the land, self-determination,...
are recognized by international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, as well as the national legal systems of common law and civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
countries. In common law jurisdictions, the land rights of indigenous peoples
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
are referred to as aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
. In customary law jurisdictions, customary land
Customary land
Customary land is land which is owned by Indigenous communities and administered in accordance with their customs, as opposed to statutory tenure usually introduced during the colonial periods. Common ownership is one form of customary land ownership....
is the predominant form of land ownership.
A land value tax
Land value tax
A land value tax is a levy on the unimproved value of land. It is an ad valorem tax on land that disregards the value of buildings, personal property and other improvements...
is a component of tax law
Tax law
Tax law is the codified system of laws that describes government levies on economic transactions, commonly called taxes.-Major issues:Primary taxation issues facing the governments world over include;* taxes on income and wealth...
in nearly all jurisdictions. Land reform
Land reform
[Image:Jakarta farmers protest23.jpg|300px|thumb|right|Farmers protesting for Land Reform in Indonesia]Land reform involves the changing of laws, regulations or customs regarding land ownership. Land reform may consist of a government-initiated or government-backed property redistribution,...
refers to government policies that take and/or redistribute land, such as a land grant
Land grant
A land grant is a gift of real estate – land or its privileges – made by a government or other authority as a reward for services to an individual, especially in return for military service...
.
Land rights refer to the inalienable ability of individuals to obtain, utilise, and possess land at their discretion, as long as their activities on the land do not impede on other individuals’ rights. This is not to be confused with access to land, which allows individuals the use of land in an economic sense (i.e. farming). Instead, land rights address the ownership of land which provides security and increases human capabilities
Capability approach
The capability approach was initially conceived in the 1980s as an approach to welfare economics....
. When a person only has access to land, they are in constant threat of expulsion depending on the choices of the land owner, which limits financial stability.
Land rights are an integral part of Land Laws, as they socially enforce groups of individuals’ rights to own land in concurrence with the land laws of a nation. Land Law addresses the legal mandates set forth by a country in regards to land ownership, while land rights refer to the social acceptance of land ownership. Landesa
Landesa
Landesa is a non-profit organization working to improve land rights for impoverished farming families in developing countries. Landesa partners with governments and non-governmental organizations to ensure that the world’s poorest families have secure rights over the land they till...
, formerly known as the Rural Development Institute (RDI)
Rural Development Institute (RDI)
Founded as the Rural Development Institute in 1967, Landesa is a nonprofit organization that partners with governments and local organizations to ensure that the world’s poorest families have secure rights over the land they till. Landesa has helped more than 100 million poor families gain legal...
takes the stance that although the law may advocate for equal access to land, land rights in certain countries and cultures may hinder a group’s right to actually own land. Laws are important, but they must be backed up by cultural tradition and social acceptance. Therefore, laws concerning land ownership and land rights of a country must be in agreement.
Globally, there has been an increased focus on land rights, as they are so pertinent to various aspects of development. According to Wickeri and Kalhan, land ownership can be a critical source of capital, financial security, food, water, shelter, and resources. The UN Global Land Tool organisation has found that rural landlessness is a strong predictor of poverty and hunger, and negatively impacts Empowerment
Empowerment
Empowerment refers to increasing the spiritual, political, social, racial, educational, gender or economic strength of individuals and communities...
and the realisation of Human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
. In order to home in on this critical problem of inadequate land rights, The Millennium Development Goal 7D
Millennium Development Goals
The Millennium Development Goals are eight international development goals that all 193 United Nations member states and at least 23 international organizations have agreed to achieve by the year 2015...
strives to improve the lives of 100 million slum dwellers. This includes increased land rights for impoverished people, which will ultimately lead to a higher quality of life.
Although land rights are fundamental in achieving higher standards of living, certain groups of individuals are consistently left out of land ownership provisions. The law may provide access to land, however, cultural barriers and poverty trap
Poverty trap
A poverty trap is "any self-reinforcing mechanism which causes poverty to persist." If it persists from generation to generation, the trap begins to reinforce itself if steps are not taken to break the cycle.-Developing world:...
s limit minority groups’ ability to own land. In order to reach equality, these groups must obtain adequate land rights that are both socially and legally recognised.
Land rights and women
Several scholars argue that women’s lack of sufficient land rights negatively affects their immediate families and the larger community, as well. With land ownership, women can develop an income and allocate this income more fairly within the household. Tim HanstadTim Hanstad
For the past twenty-five years, Mr. Tim Hanstad has led Landesa's institutional growth. Tim also has more than 20 years of experience in project management, research, consulting, policy advocacy, training and writing on issues of expanding land access, improving land tenure security, and developing...
claims that providing sufficient land rights for women is beneficial because:
- Women are less likely to contract and spread HIV/AIDS as they do not have to resort to prostitution
- Women are less likely to be victims of Domestic violenceDomestic violenceDomestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence , is broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, or cohabitation...
- Children are more likely to get an education and stay in school longer
- Women may have better access to MicrocreditMicrocreditMicrocredit is the extension of very small loans to those in poverty designed to spur entrepreneurship. These individuals lack collateral, steady employment and a verifiable credit history and therefore cannot meet even the most minimal qualifications to gain access to traditional credit...
In many parts of the world, women have access to land in order to farm and cultivate the land; however, there are traditions and cultural norms which bar women from inheriting or purchasing land. This puts women in a place of dependence on their husbands, brothers, or fathers for their livelihood and shelter. Should there be an illness, domestic violence, or death in the family, women would be left landless and unable to either grow crops for food, or rent land for profit. Land ownership for women is a crucial form of security and income, increasing Empowerment
Empowerment
Empowerment refers to increasing the spiritual, political, social, racial, educational, gender or economic strength of individuals and communities...
and decreasing Poverty
Poverty
Poverty is the lack of a certain amount of material possessions or money. Absolute poverty or destitution is inability to afford basic human needs, which commonly includes clean and fresh water, nutrition, health care, education, clothing and shelter. About 1.7 billion people are estimated to live...
.
India
Kanakalatha Mukund makes the important point that although women in India have the legal right to own land; very few actually do as a result of the patriarchalPatriarchy
Patriarchy is a social system in which the role of the male as the primary authority figure is central to social organization, and where fathers hold authority over women, children, and property. It implies the institutions of male rule and privilege, and entails female subordination...
practices which dominate the nation. Up until recently, Indian women have been left out of laws regarding the distribution of public land, forced to rely on the small possibility of obtaining private land from family. Inheritance laws
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
which cater towards men are one of the key issues behind inequality in land rights. According to Bina Agarwal
Bina Agarwal
Bina Agarwal is a prize-winning development economist and Director and Professor of Economics at the Institute of Economic Growth in Delhi. She has written extensively on land, livelihoods and property rights; environment and development; the political economy of gender; poverty and inequality;...
, land ownership defines social status and political power in the household and in the village, shaping relationships and creating family dynamics. Therefore, inheritance of land automatically puts men above women both in the household, and in the community. Without the political pull in the village, and limited bargaining powers within the household, women lack the voice to advocate for their own rights.
Another issue with land rights in India is that they leave women completely dependent on the lives of their husbands. A study by Bina Agarwal found that in West Bengal, prosperous families turn destitute when the male head of the household dies, as women are not permitted to take over their husband’s land. Also, due to cultural tradition, the higher the status of the woman, the less likely she is to have any developed skills that would be useful in finding work. These women are forced to beg for food and shelter once their husbands die because they have not been allowed to gain work experience.
Bina Agarwal argues that land ownership significantly decreases the chance of domestic violence against Indian women. Owning property elevates women to a higher status within the household, allowing more equality and bargaining power. In addition, owning property separately from their husbands allowed women an opportunity of escape from abusive relationships
Relational aggression
Relational aggression, also known as covert aggression or covert bullying, is a type of aggression in which harm is caused through damage to relationships or social status within a group rather than by means of actual or threatened physical violence...
. Agarwal concluded that the prospect of a safe shelter outside of the main household decreases the longevity of domestic violence.
Land rights are critical for women in India due to the heavily patriarchal society in which they live. Cultural perspectives play a key role in the acceptance of equality within land ownership. Women owning land ultimately benefits the household and society as a whole.
The most recent advance towards equality in land rights in India was the Hindu Succession Act of 2005. This act aimed to remove the gender discrimination which was present in the Hindu Succession Act, 1956. In the new amendment, daughters and sons have equal rights to obtain land from their parents. This act was both a legally and socially important move for women’s rights to land ownership. Not only did it legally mandate equality in land succession, it also validated women’s roles as equals in society.
Uganda
Uganda’s 1995 ConstitutionConstitution of Uganda
The Constitution of Uganda is the supreme law of Uganda. The current constitution was adopted on October 8, 1995. It sanctions a republican form of government with a powerful president. 2005 amendments removed presidential term limits and legalized a multi-party political system.-External links:*...
enforces equality between men and women, including the acquisition and ownership of land. However, research from Women’s Land Link Africa reveals that women remain excluded from land ownership due to customs and deeply ingrained cultural habits. Even when women save up enough money to purchase land, the land is signed in their husband’s name, while women sign as the witness. Inheritance practices
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
are a particular obstacle which reduces women empowerment
Empowerment
Empowerment refers to increasing the spiritual, political, social, racial, educational, gender or economic strength of individuals and communities...
, as well. Land is passed down through male lineage which reinforces women’s exclusion from land ownership. Another detriment to equality, pointed out by Women’s Land Link Africa, is that women lack sufficient knowledge about the rights they have under the law to own land. Rural, illiterate women do not even have access to the new constitution which guarantees them land rights.
Although the 1995 Constitution provides for equality between men and women, there are still gaps in the law which affect women’s rights to land. The law protects the rights to land of wives in marriage; however, it does not address the needs of widows or divorcees. Consequentially, these women are left landless and without the protection land offers. Also, women have a difficult time taking cases to court due to corruption and expensive trials. The trials concerning land take so long to process that many women do not even attempt to seek legal assistance.
Women’s Land Link Africa provides suggestions to alleviate inequality in land ownership. Rural women can be educated about their rights through radio campaigns, community discussions, educational outreach programs, and public forums. The cultural nuances must be addressed in policies and community leaders can be educated about inclusion of minority groups. Also, the law itself can address the rights of widows and divorcees in addition to the rights of married women.